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TMI Blog2001 (10) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... d of appeal involved in these cases is regarding the additions made by the Assessing Officer in respect of the transfer fee of office premises. One consolidated order is being passed for the sake of convenience as the issue involved in all the cases is identical. 2. The assessee is a co-operative society owning a building called Regent Chambers at 208, Nariman Point, Mumbai-21. The assessee co-operative housing society received the following amounts as contributions for common amenity funds/transfer fees Assessment year Amount (Rs.) 1.1989-90 1,73,000 2.1990-91 47,700 3.1991-92 47,70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. The Assessing Officer, however, rejected the claim of the assessee and observed that the payments in question was not voluntary payment and the same were realised through coercive clauses of the society s bye-laws. Before the learned CIT(A), it was contended that the case of Bombay High Court relied upon by the Assessing Officer, the question of maturity was not before the court and the assessee was claiming exemption on the principle of mutuality. Regarding the decision of the Tribunal relied upon by the Assessing Officer, it was contended before the CIT(A) that the Tribunal was not justified in rejecting the principle of mutuality in view of the Gujarat and Andhra Pradesh High Court decisions in the cases of CIT v. Shri Jari Merchants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issue is squarely covered in favour of the Department in the following cases decided by the Bombay Bench of the Tribunal. (i) Presidency Co-op. Housing Society Ltd. v. ITO [IT Appeal No. 6254 (Bom.) of 1999, dated 17-8-2001] for the assessment year 1986-87. (ii) Oval Shivshanti Bhuvan Co-op. Housing Society Ltd. v. ITO [IT Appeal No. 8868 (Mum.) of 1995, dated 16-6-2000] for the assessment year 1993-94. (iii) Asstt. CIT v. Maker Tower Premises Co-op. Housing Society Ltd. [IT Appeal No. 5771 (Mum.) of 1996, dated 15-8-2000] for the assessment years 1992-93 and 1993-94. 4. We have carefully considered the submissions made by the rival parties. We have also gone through the decisions of the Tribunal relied upon by the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there must be complete identity between the contributors and the participators. If all the participators to the common fund are also contributors and their identities are established, then the test of mutuality is satisfied. In the case of CIT v. Kumbakonam Mutual Benefit Fund Ltd. [1964] 53 ITR 241 the Hon ble Apex Court held that the essence of mutuality lies in the return of what one has contributed to a common fund, and unless there was such complete identity between the contributors and the participators in a common fund, the principle of mutuality and exemption on that ground would not be attracted. In the present case, the members who are transferring their flats/office do not get any benefit out of the amounts which they have con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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